Kelly v. Alpstetten Ass'n, Inc., No. 156-71

Docket NºNo. 156-71
Citation303 A.2d 136, 131 Vt. 165
Case DateApril 03, 1973
CourtUnited States State Supreme Court of Vermont

Page 136

303 A.2d 136
131 Vt. 165
John F. KELLY
v.
ALPSTETTEN ASSOCIATION, INC.
No. 156-71.
Supreme Court of Vermont.
April 3, 1973.

[131 Vt. 166]

Page 137

Timothy J. O'Connor, Jr., and Edward M. Goutas, Brattleboro, for plaintiff.

Philip K. Rosi, of Kristensen, Cummings & Price, Brattleboro, for defendant.

Before [131 Vt. 165] SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

[131 Vt. 166] BARNEY, Justice.

Confronted by a claim for the expenses of a water system, the plaintiff brought a declaratory action seeking to prevent the shutting off of water to premises owned by him, and to have his rights to take water from the system declared. The defendant, present owner of the water system, countered with a cross-bill seeking to establish a duty in the plaintiff to pay for his water service, and to confirm the defendant corporation's right to terminate service.

A temporary injunction issued below preventing the shutting[131 Vt. 167] off of water, and the case was duly heard. Judgment in favor of the defendant for $2680.00 in back charges was rendered, and the injunction was to be terminated. Operation of these provisions was prevented by the filing of an appeal to this Court.

The matter began a little over ten years ago when a development corporation, known as Alpine Villages, Inc., commenced a vacation home complex in the West Dover, Vermont, area. Lots were laid out, several homes built and a water system derived from a spring constructed. In 1962, the corporation Alpstetten Association, Inc., was formed to purchase both the lots and land that then remained unsold, and the water system, which it still owns.

The plaintiff owns four parcels of land, two with A-frame houses and two with chalets. Title to all four parcels derives ultimately from either the defendant Alpstetten Association, Inc. or its predecessor, Alpine Villages, Inc. All deeds contain provisions giving the grantees the right to connect to the water main now owned by Alpstetten, with the burden on the lot owner to bear all of the costs of making and maintaining such connection. Although there is some variation as to the measurement of the obligation as between parcels, all also provide for the lot owner to bear a proportionate share of the cost of maintaining the water main and spring system in common with all other grantees permitted to connect to the system.

The cross-bill filed by the defendant corporation alleged that it was an association of all of the property owners to provide for orderly maintenance of their properties, including the water system. This allegation was denied by the plaintiff, and so became a controverted issue in the case. However, although a matter importantly related to the plaintiff's claim, it was not dealt with in the findings.

A determination of the identity, or lack or it, between all the water users or property owners and the stockholders of the defendant corporation might well have made the resolution of this controversy simple and direct. If, as argued by the plaintiff, the defendant sold water to property owners not part of its ownership, the question of public service board jurisdiction over it as a public water company under 30 V.S.A. § 203(3) could well have been controlling. See Krulee v. [131 Vt. 168] Huyck, 121 Vt. 299, 303, 156 A.2d 74 (1959). Under 30 V.S.A. § 220...

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11 practice notes
  • State v. Read, No. 95-023
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 22 Marzo 1996
    ...resolve those claims, because we determined that the interlocutory appeal had been improvidently granted by the trial court. Id. at 248, 303 A.2d at 136. We acknowledged in dictum, however, that "the statute in question [165 Vt. 146] might be found to have a constitutional infirmity under o......
  • Khan v. Alpine Haven Prop. Owners' Ass'n, Inc., No. 19-184
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 2 Octubre 2020
    ...prevent unjust enrichment" and "applies in the absence of an express agreement" (quotation omitted)); see also Kelly v. Alpstetten Ass'n, 131 Vt. 165, 168, 303 A.2d 136, 138 (1973) (recognizing "equitable principle that requires persons in the enjoyment of a common benefit to all contribute......
  • State v. Haynes, Nos. 19-006
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 28 Junio 2019
    ...deemed that it was not an issue appropriate for interlocutory review and dismissed the appeal as improvidently granted. Id. at 248, 303 A.2d at 136.¶ 18. Two consolidated criminal cases again presented issues involving interlocutory review by criminal defendants. In State v. Karcz, 134 Vt. ......
  • Khan v. Alpine Haven Prop. Owners' Ass'n, No. 2019-184
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 2 Octubre 2020
    ...prevent unjust enrichment" and "applies in the absence of an express agreement" (quotation omitted)); see also Kelly v. Alpstetten Ass'n, 131 Vt. 165, 168, 303 A.2d 136, 138 (1973) (recognizing "equitable principle that requires persons in the enjoyment of a common benefit to all contribute......
  • Request a trial to view additional results
11 cases
  • State v. Read, No. 95-023
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 22 Marzo 1996
    ...resolve those claims, because we determined that the interlocutory appeal had been improvidently granted by the trial court. Id. at 248, 303 A.2d at 136. We acknowledged in dictum, however, that "the statute in question [165 Vt. 146] might be found to have a constitutional infirmity under o......
  • Khan v. Alpine Haven Prop. Owners' Ass'n, Inc., No. 19-184
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 2 Octubre 2020
    ...prevent unjust enrichment" and "applies in the absence of an express agreement" (quotation omitted)); see also Kelly v. Alpstetten Ass'n, 131 Vt. 165, 168, 303 A.2d 136, 138 (1973) (recognizing "equitable principle that requires persons in the enjoyment of a common benefit to all contribute......
  • State v. Haynes, Nos. 19-006
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 28 Junio 2019
    ...deemed that it was not an issue appropriate for interlocutory review and dismissed the appeal as improvidently granted. Id. at 248, 303 A.2d at 136.¶ 18. Two consolidated criminal cases again presented issues involving interlocutory review by criminal defendants. In State v. Karcz, 134 Vt. ......
  • Khan v. Alpine Haven Prop. Owners' Ass'n, No. 2019-184
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 2 Octubre 2020
    ...prevent unjust enrichment" and "applies in the absence of an express agreement" (quotation omitted)); see also Kelly v. Alpstetten Ass'n, 131 Vt. 165, 168, 303 A.2d 136, 138 (1973) (recognizing "equitable principle that requires persons in the enjoyment of a common benefit to all contribute......
  • Request a trial to view additional results

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